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FIFTH
SECTION
CASE OF SCHUMMER v. GERMANY
(Applications
nos. 27360/04 and 42225/07)
JUDGMENT
STRASBOURG
13
January 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Schummer v.
Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Rait Maruste,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva,
Ganna
Yudkivska, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 7 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 27360/04 and 42225/07)
against the Federal Republic of Germany lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a German
national,
Mr Martin Schummer (“the applicant”), on 10
July 2004 and
4 September 2007 respectively.
- The
applicant, who had been granted legal aid, was represented
by Mr
R. Kirpes, a lawyer practising in Offenburg. The German Government
(“the Government”) were represented by their Agent,
Mrs
A. Wittling-Vogel, Ministerialdirigentin, of the Federal
Ministry of Justice.
- The
applicant alleged in both applications, in particular, that the
retrospective extension of his preventive detention from a maximum
period of ten years, which had been the maximum for such detention
under the legal provisions applicable at the time of his offence, to
an unlimited period of time breached the prohibition of retrospective
punishment under Article 7 § 1 of the Convention. In his
application no. 42225/07, he further complained under Article 5 §
1 of the Convention about his continued preventive detention beyond
the ten-year period.
- On
13 March 2007 a Chamber of the Fifth Section decided to adjourn the
examination of application no. 27360/04 pending the outcome of the
proceedings in the case of M. v. Germany, no. 19359/04.
On
22 January 2009 the President of the Fifth Section decided to give
notice of the applications no. 27360/04 and no. 42225/07 to the
Government, requested them to submit information on changes in the
applicant’s detention regime and adjourned the examination of
the applications until the judgment in the case of M. v. Germany,
no. 19359/04, has become final.
It was also decided to rule on
the admissibility and merits of the applications at the same time
(Article 29 § 1). In view of the fact that the judgment of 17
December 2009 in the case of M. v. Germany became final on 10
May 2010, the President decided on 20 May 2010 that the proceedings
in the two applications at issue be resumed and granted priority to
the applications (Rule 41 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Freiburg.
A. The applicant’s previous convictions and the
order for his preventive detention and execution thereof
- On
6 March 1985 the Stuttgart Regional Court convicted the applicant of
two counts of rape and abduction and of one count of attempted rape
and deprivation of liberty committed in 1984. It sentenced him to
five years’ imprisonment and ordered his placement in
preventive detention pursuant to Article 66 of the Criminal Code (see
paragraphs 35-36 below). The court found that the applicant, acting
with full criminal responsibility, had raped two young women and had
attempted to rape another woman all of whom he had taken with him in
his car. It further noted that the applicant had previously been
convicted by juvenile courts of attempted rape and of rape; in
respect of the second offence he had been placed in a psychiatric
hospital.
- The
applicant served his full prison sentence in Freiburg Prison.
He
was then placed in preventive detention, executed in that same
prison, for the first time on 27 June 1989; he had thus served ten
years in preventive detention by 26 June 1999.
- The
continuation of the applicant’s preventive detention was
ordered by the Freiburg Regional Court on several occasions.
B. The first set of proceedings (application no.
27360/04)
1. The decision of the Freiburg Regional Court
- On
11 December 2001 the Freiburg Regional Court, in judicial review
proceedings under Article 67e of the Criminal Code (see paragraph 38
below), refused to suspend the applicant’s preventive detention
and grant probation.
- The
Regional Court considered that the applicant’s continued
preventive detention was necessary because there was still a risk
that the applicant, owing to his criminal tendencies, might commit
serious offences resulting in considerable psychological or physical
harm to the victims if released (Article 67d § 3 of the Criminal
Code; see paragraph 40 below). Since the court’s last order of
18 June 1999, to the reasoning of which it referred, no circumstances
leading to a more positive conclusion had become known.
- The
Regional Court had consulted a psychological expert on the question
whether there was a risk that the applicant, if released, might
commit offences by which his victims would suffer serious physical or
mental harm. However, the expert could only submit a view on the
basis of the case file as the applicant had refused to talk to her.
- The
Regional Court further noted that in his report of 11 November 1991 a
neurologic expert had found that the applicant suffered from a
personality disorder which had resulted in his acts of sexual
aggression.
The Regional Court acknowledged that the applicant
had accepted
social-therapeutic treatment from August 1985 until
June 1988. However, he had then terminated that treatment. In 1992
the detention authorities had proposed certain relaxations in the
conditions of the applicant’s detention, but the applicant had
refused to cooperate. In his report of 12 April 1999 the neurologic
expert had found that the applicant still suffered from the said
personality disorder. In recent years the applicant had refused any
therapy. Therefore, there was nothing to indicate that the applicant
was no longer dangerous. In any event, his release could only be
taken into consideration after his conditions of detention had been
relaxed, combined with a successful social-therapeutic treatment.
- The
Regional Court further stated that it did not consider the new
version of Article 67d of the Criminal Code of January 1998
(see
paragraph 40 below) to breach constitutional law in so far as it
applied also to persons convicted prior to that change in the law.
2. The decision of the Karlsruhe Court of Appeal
- By
a decision of 21 March 2002, served on the applicant on
2 April
2002, the Karlsruhe Court of Appeal, fully endorsing the reasons
given by the Regional Court, dismissed the applicant’s appeal.
In particular, contrary to the applicant’s submission, it
considered that Article 67d of the Criminal Code, read in conjunction
with section 1a of the Introductory Act to the Criminal Code (see
paragraph 40 below), which entered into force on 31 January 1998,
were constitutional. The prohibition on retrospective punishment did
not apply to orders of preventive detention, which did not constitute
a penalty, but a measure of correction and prevention. In view of the
fact that there was a risk that the applicant, if released, might
commit sexual offences similar to those he had previously committed,
his continued detention was not yet disproportionate.
3. The decision of the Federal Constitutional Court
- On
29 April 2002 the applicant lodged a constitutional complaint with
the Federal Constitutional Court against the decisions ordering his
continued preventive detention even on completion of the ten year
period. He argued that these decisions were based on Article 67d §
3 of the Criminal Code, as amended in 1998, under the terms of which
the duration of a convicted person’s first period of preventive
detention was extended retrospectively from a maximum period of ten
years, applicable prior to the change in the law, to an unlimited
period of time. Therefore, this provision violated the prohibition on
retrospective punishment under Article 103 § 2 of the Basic Law,
the prohibition of retrospective legislation enshrined in the rule of
law, his right to liberty under Article 2 § 2, second sentence,
of the Basic Law and the principle of proportionality (see paragraph
32 below).
- On
22 March 2004 the Federal Constitutional Court declined to consider
the applicant’s constitutional complaint (file no. 2 BvR
664/02) as it was ill-founded. Referring to its leading decision
given on
5 February 2004 in relation to the case of M.
(file no. 2 BvR 2029/01; application no. 19359/04 before this
Court), it found that Article 67d § 3 of the Criminal Code, read
in conjunction with section 1a § 3 of the Introductory Act to
the Criminal Code, as amended on 26 January 1998, were
constitutional.
C. The second set of proceedings (application no.
42225/07)
1. The decision of the Freiburg Regional Court
- On
12 July 2006 the Freiburg Regional Court, having consulted a
psychiatric expert, W., again refused to suspend the applicant’s
preventive detention and grant probation under Article 67d § 3
of the Criminal Code.
2. The decision of the Karlsruhe Court of Appeal
- On
11 December 2006 the Karlsruhe Court of Appeal dismissed the
applicant’s appeal. The Court of Appeal endorsed the Regional
Court’s view that there was still a risk that the applicant, if
released, might commit serious offences resulting in considerable
psychological or physical harm to the victims.
- The
Court of Appeal had regard to the report of 16 March 2006 by
psychiatric expert W., who, having examined the applicant and the
case file, had considered the applicant liable to reoffend. According
to the expert, the applicant still suffered from a personality
disorder which had, in the past, manifested itself by violent
sexualised behaviour.
- The
Court of Appeal observed that the expert’s negative prognosis
was based on a limited factual basis in respect of the applicant’s
personal development after his offences. The expert had only found
that the applicant’s personality disorder had not been cured by
therapy, without assessing whether this disorder would still manifest
itself in similar offences in the future. It was for the prison
authorities and the regional courts to extend the basis for a
prognosis by therapeutic measures and by granting relaxations in the
conditions of detention. However, such therapeutic measures had not
been taken in the applicant’s case in the past years, even
though an expert had already made specific proposals for such
measures in 1991 and again in 1999. The applicant had refused a
dialogue with the prison authorities on his therapy, but it was for
the prison authorities to make reasonable offers of treatment and to
grant relaxations in the conditions of the applicant’s
detention, which it had failed to do. However, without testing and
preparing the applicant for release in the course of relaxations in
his conditions of detention, there was a risk that he would commit
serious sexual offences if released.
3. The decision of the Federal Constitutional Court
- On
16 January 2007 the applicant lodged a constitutional complaint with
the Federal Constitutional Court. He argued that his continued
preventive detention violated his right to liberty, the prohibition
of retrospective punishment, the prohibition of double punishment for
the same offence and the prohibition of inhuman treatment. He argued,
in particular, that by the further execution of preventive detention
against him, he had been treated as a mere object of State action in
disregard of his human dignity. Moreover, his right to a fair trial
had been breached, in particular in that the criminal courts had
failed to decide on his continued preventive detention within the
statutory time-limit.
- On
26 April 2007 the Federal Constitutional Court declined to consider
the applicant’s constitutional complaint (file no. 2 BvR
157/07).
- It
found that the applicant’s complaint was inadmissible for
non-exhaustion of domestic remedies in so far as he had
complained about the Regional Court’s failure to decide on his
continued preventive detention already in 2003, as prescribed by
Article 67e §§ 1 and 2 of the Criminal Code (see paragraph
38 below). The applicant had failed to apply for judicial review of
this failure to comply with the statutory time-limit.
- In
so far as the applicant had complained about his continued preventive
detention for a period exceeding ten years, his complaint was
ill-founded. His continued preventive detention on the basis of
Article 67d § 3 of the Criminal Code, as amended in 1998,
was constitutional.
The criminal courts had further respected the
principle of proportionality in respect of deprivations of liberty in
their decisions.
D. Subsequent developments
- On
31 July 2009 the Freiburg Regional Court, reviewing the necessity of
the applicant’s continued detention, decided that the applicant
was to remain in preventive detention as, owing to his criminal
tendencies, he was still liable to commit serious offences resulting
in considerable psychological or physical harm to the victims.
- On
31 August 2009 the Karlsruhe Court of Appeal quashed that decision
and remitted the case to the Freiburg Regional Court. It found that
the Regional Court had not sufficiently established the facts on
which it had based its decision and had failed to hear the medical
expert, who had submitted a report in writing on its request, also in
person at the hearing.
- On
11 June 2010 the Federal Constitutional Court dismissed the
applicant’s request of 15 May 2010 that the Constitutional
Court, by way of an interim injunction, request the Regional Court to
order the applicant’s immediate release and declare whether the
Court’s findings in its judgment in the case of M. v.
Germany, no. 19359/04, were applicable to other detainees (file
no. 2 BvQ 34/10). It found that the applicant had failed to explain
why he could not be expected to await the decisions to be taken by
the courts responsible for the execution of sentences on his further
detention.
- On
8 July 2010 the Freiburg Regional Court again decided not to suspend
the applicant’s preventive detention and grant probation.
- On
10 September 2010 the Karlsruhe Court of Appeal declared the
applicant’s preventive detention terminated and ordered his
supervision of conduct. The Court of Appeal, referring to a leading
decision of the Federal Court of Justice of 12 May 2010 (see
paragraph 41 below), argued that it was possible to interpret the
Criminal Code so as to comply with the Convention as interpreted by
this Court in the case of M. v. Germany. Accordingly, it found
that in relation to preventive detention the application of a new
statutory provision retrospectively to the detriment of the person
concerned was prohibited and the law in force at the time of the
offence had to be applied. As Article 67d § 1 of the Criminal
Code, in its version in force at the time the applicant committed his
offences, provided that the first period of preventive detention
could not exceed ten years, the applicant’s preventive
detention was terminated and the applicant was to be released.
- The
Karlsruhe Court of Appeal further found that the applicant had no
claim for damages under the Act on Compensation for Measures of
Criminal Prosecution (Gesetz über die Entschädigung für
Strafverfolgungs-maßnahmen). A claim for damages under
Article 5 § 5 of the Convention or official liability
proceedings had to be brought in the civil courts.
- The
applicant was released on 10 September 2010 and has been submitted to
constant surveillance by five police officers since then.
II. RELEVANT DOMESTIC AND COMPARATIVE LAW AND PRACTICE
- A
comprehensive summary of the provisions of the Criminal Code and of
the Code of Criminal Procedure governing the distinction between
penalties and measures of correction and prevention, in particular
preventive detention, and the making, review and execution in
practice of preventive detention orders, is contained in the Court’s
judgment in the case of M. v. Germany
(no. 19359/04, §§ 45-78, 17 December 2009).
The
provisions relevant to the present case can be summarised as follows:
A. The order of preventive detention by the sentencing
court
- The
German Criminal Code distinguishes between penalties (Strafen)
and so called measures of correction and prevention (Maßregeln
der Besserung und Sicherung) to deal with unlawful acts.
Preventive detention (Article 66 et seq. of the Criminal Code)
is classified as a measure of correction and prevention. The purpose
of such measures is to rehabilitate dangerous offenders or to protect
the public from them. They may be ordered for offenders in addition
to their punishment (compare Articles 63 et seq.). They must,
however, be proportionate to the gravity of the offences committed
by, or to be expected from, the defendants as well as to their
dangerousness (Article 62 of the Criminal Code).
- The
temporal applicability of provisions of the Criminal Code depends on
whether they relate to penalties or measures of correction and
prevention. The penalty is determined by the law which is in force at
the time of the act (Article 2 § 1 of the Criminal Code); if the
law in force on completion of the act is amended before the court’s
judgment, the more lenient law applies (Article 2 § 3). On the
other hand, decisions on measures of correction and prevention are to
be based on the law in force at the time of the decision unless the
law provides otherwise (Article 2 § 6).
- The
sentencing court may, at the time of the offender’s conviction,
order his preventive detention under certain circumstances in
addition to his prison sentence if the offender has been shown to be
dangerous to the public (Article 66 of the Criminal Code).
- In
particular, the sentencing court orders preventive detention in
addition to the penalty if someone is sentenced for an intentional
offence to at least two years’ imprisonment and if the
following further conditions are satisfied. Firstly, the perpetrator
must have been sentenced twice already, to at least one year’s
imprisonment in each case, for intentional offences committed prior
to the new offence. Secondly, the perpetrator must previously have
served a prison sentence or must have been detained pursuant to a
measure of correction and prevention for at least two years. Thirdly,
a comprehensive assessment of the perpetrator and his acts must
reveal that, owing to his propensity to commit serious offences,
notably those which seriously harm their victims physically or
mentally or which cause serious economic damage, the perpetrator
presents a danger to the general public (see Article 66 § 1).
B. The order for execution of the placement in
preventive detention
- Article
67c of the Criminal Code governs orders for the preventive detention
of convicted persons which are not executed immediately after the
judgment ordering them becomes final. Paragraph 1 of the Article
provides that if a term of imprisonment is executed prior to a
simultaneously ordered placement in preventive detention, the court
responsible for the execution of sentences (that is, a special
Chamber of the Regional Court composed of three professional judges,
see sections 78a and 78b(1)(1) of the Court Organisation Act) must
review, before completion of the prison term, whether the person’s
preventive detention is still necessary in view of its objective. If
that is not the case, it suspends on probation the execution of the
preventive detention order; supervision of the person’s conduct
(Führungsaufsicht) commences with suspension.
C. Judicial review and duration of preventive detention
- Pursuant
to Article 67e of the Criminal Code the court (i.e. the
chamber responsible for the execution of sentences) may review at any
time whether the further execution of the preventive detention order
should be suspended on probation. It is obliged to do so within fixed
time-limits (paragraph 1 of Article 67e). For persons in preventive
detention, this time limit is two years (paragraph 2 of Article
67e).
- Under
Article 67d § 1 of the Criminal Code, in its version in force
prior to 31 January 1998, the first period of preventive detention
may not exceed ten years. If the maximum duration has expired, the
detainee shall be released (Article 67d § 3).
- Article
67d of the Criminal Code was amended by the Combating of Sexual
Offences and Other Dangerous Offences Act of 26 January 1998, which
entered into force on 31 January 1998. Article 67d § 3, in its
amended version, provides that if a person has spent ten years in
preventive detention, the court shall declare the measure terminated
(only) if there is no danger that the detainee will, owing to his
criminal tendencies, commit serious offences resulting in
considerable psychological or physical harm to the victims.
Termination shall automatically entail supervision of the conduct of
the offender. The former maximum duration of a first period of
preventive detention was abolished. Pursuant to section 1a § 3
of the Introductory Act to the Criminal Code, the amended version of
Article 67d § 3 of the Criminal Code was to be applied without
any restriction ratione temporis.
D. The application of the Court’s findings in the
M. v. Germany case by the domestic courts
- By
a decision of 12 May 2010 (file no. 4 StR 577/09) the Federal Court
of Justice (fourth senate), in a decision concerning a retrospective
order of preventive detention (nachträgliche
Sicherungsverwahrung), found that the
Criminal Code was to be and could be interpreted so as to comply with
Article 7 § 1 of the Convention as interpreted by this Court in
its judgment in M. v. Germany,
no. 19359/04. Under Article 2 § 6 of the Criminal Code (see
paragraph 34 above), decisions on measures of correction and
prevention were to be based on the law in force at the time of the
court’s decision unless the law provided otherwise. Article 7 §
1 of the Convention, in its interpretation by this Court, was such a
law which provided otherwise as the Court had considered that
preventive detention was to be qualified as a penalty for the
purposes of Article 7 to which the prohibition of retrospective
punishment applied (the fifth senate of the Federal Court of Justice,
in its decision of 21 July 2010, file no.
5 StR 60/10, disagreed
with the fourth senate on that point in relation to a different
provision on retrospective preventive detention). Therefore, court
decisions concerning orders of preventive detention had to be based
on the law in force at the time of the offence.
- Referring,
in particular, to these findings of the Federal Court of Justice,
several Courts of Appeal found in cases comparable, as regards the
temporal course of events, to the M. v.
Germany case that the abolition of the
maximum period of ten years laid down in Article 67d § 1 of the
Criminal Code in its version in force before 31 January 1998 could
not be effected retrospectively and therefore still applied to
preventive detention ordered in relation to offences committed prior
to that date. As a consequence, these courts declared terminated the
preventive detention of the detainees concerned whose first period of
preventive detention had been executed beyond that maximum period and
ordered their release (see, in particular, Frankfurt am Main Court of
Appeal, decision of 24 June 2010, file no. 3 Ws 485/10; Hamm Court of
Appeal, decision of 6 July 2010,
file no. 4 Ws 157/10; Karlsruhe
Court of Appeal, decision of 15 July 2010, file no. 2 Ws 458/09; and
Schleswig-Holstein Court of Appeal, decision of 15 July 2010, file
no. 1 Ws 267/10).
- On
the contrary, several Courts of Appeal considered that the Court’s
findings in the case of M. v. Germany
could not be applied at present by the domestic courts responsible
for the execution of sentences as the Criminal Code as it stood did
not permit its interpretation in compliance with Articles 5 and 7 of
the Convention. Section 1a § 3 of the Introductory Act to the
Criminal Code had expressly stipulated that the abolition of the
maximum duration of ten years for a first period of preventive
detention also applied to persons who had committed the offences in
question prior to the entry into force of that abolition and had
thereby unambiguously authorized the application of the amended law
with retrospective effect.
It was therefore for the legislator to
execute the Court’s judgment in the M.
case. These Courts of Appeal accordingly did not terminate the
preventive detention of the persons concerned (see, in particular,
Celle Court of Appeal, decision of 25 May 2010, file no. 2 Ws
169-170/10; Stuttgart Court of Appeal, decision of 1 June 2010, file
no. 1 Ws 57/10; Koblenz Court of Appeal, decision of 7 June 2010,
file no. 1 Ws 108/10; Nuremberg Court of Appeal, decision of 24 June
2010, file no. 1 Ws 315/10; and Cologne Court of Appeal, decision of
14 July 2010, file no. 2 Ws 428/10). Several of these Courts of
Appeal subsequently submitted such cases to the Federal Court of
Justice for a preliminary ruling under a new provision of the Court
Organisation Act (section 121 § 2 no. 3) in force since 30 July
2010, which is aimed at securing a uniform case-law of the German
courts on that issue (see, for instance, Koblenz Court of Appeal,
decision of 30 September 2010, file no. 1 Ws 108/10).
THE LAW
I. JOINDER OF THE APPLICATIONS
- Given
that the present two applications concern two sets of proceedings in
both of which a similar subject-matter, namely the applicant’s
continued preventive detention, was at issue, the Court decides that
the applications shall be joined (Rule 42 § 1 of the Rules of
Court).
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained in his application no. 42225/07 that his
continued preventive detention beyond the period of ten years which
had been the maximum for such detention under the legal provisions
applicable at the time of his offence and conviction breached Article
5 § 1 of the Convention which, in so far as relevant, provides:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court; ...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants; ...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant argued that the retrospective prolongation of his
preventive detention from an initial maximum period of ten years to
an unlimited period of time, eighteen months before his scheduled
release from preventive detention, had rendered his detention
arbitrary and failed to comply with Article 5.
- The
Government took the view that in terms of the temporal course of
events, the present applications were parallel cases to the
application of M. v. Germany, no. 19359/04. At the time of the
applicant’s conviction in 1985, a first order of preventive
detention was limited by law to a maximum duration of ten years.
Following the abolition of the ten-year maximum period in 1998, the
applicant kept being placed in preventive detention also after 26
June 1999, when he had served ten years in his first preventive
detention. The courts responsible for the execution of sentences had
considered that there was still a risk that the applicant, owing to
his criminal tendencies, might commit serious offences resulting in
considerable psychological or physical harm to the victims if
released. As regards the compliance of the applicant’s
continued detention with Article 5 § 1, the Government referred
to their observations made on that issue in the case of M. v.
Germany.
- The
Government further argued that it was for the domestic courts to
decide on the termination of the applicant’s preventive
detention, having regard to the Court’s findings in the case of
M. v. Germany. Referring to recent decisions taken by the
Schleswig-Holstein, Karlsruhe, Frankfurt am Main and Hamm Courts of
Appeal (see paragraphs 41-42 above), they took the view that it was
possible for the courts responsible for the execution of sentences to
interpret German law in compliance with Articles 5 and 7 of the
Convention.
2. The Court’s assessment
a. Recapitulation of the relevant
principles
- The
Court reiterates the fundamental principles laid down in its case-law
on Article 5 § 1 of the Convention, which have been summarised
in its judgment of 17 December 2009 in the case of M. v. Germany,
no. 19359/04, as follows:
“86. Article 5 § 1 sub-paragraphs
(a) to (f) contain an exhaustive list of permissible grounds for
deprivation of liberty, and no deprivation of liberty will be lawful
unless it falls within one of those grounds (see, inter alia,
Guzzardi v. Italy,
6 November 1980, § 96, Series A
no. 39; Witold Litwa v. Poland, no. 26629/95, § 49,
ECHR 2000 III; and Saadi v. the United Kingdom [GC],
no. 13229/03, § 43, ECHR 2008 ...). ...
87. For the purposes of sub-paragraph (a) of
Article 5 § 1, the word “conviction”, having regard
to the French text (“condamnation”), has to be
understood as signifying both a finding of guilt after it has been
established in accordance with the law that there has been an offence
(see Guzzardi, cited above, § 100), and the imposition of
a penalty or other measure involving deprivation of liberty (see Van
Droogenbroeck v. Belgium, 24 June 1982, § 35, Series A
no. 50).
88. Furthermore, the word “after”
in sub-paragraph (a) does not simply mean that the “detention”
must follow the “conviction” in point of time: in
addition, the “detention” must result from, follow and
depend upon or occur by virtue of the “conviction” (see
Van Droogenbroeck, cited above, § 35). In short, there
must be a sufficient causal connection between the conviction and the
deprivation of liberty at issue (see Weeks v. the United Kingdom,
2 March 1987, § 42, Series A no. 114; Stafford v. the
United Kingdom [GC], no. 46295/99, § 64, ECHR
2002 IV; Waite v. the United Kingdom, no. 53236/99,
§ 65, 10 December 2002; and Kafkaris v. Cyprus [GC],
no. 21906/04, § 117, ECHR 2008 ...). ...
89. Furthermore, under sub-paragraph (c) of
Article 5 § 1, detention of a person may be justified “when
it is reasonably considered necessary to prevent his committing an
offence”. However, that ground of detention is not adapted to a
policy of general prevention directed against an individual or a
category of individuals who present a danger on account of their
continuing propensity to crime. It does no more than afford the
Contracting States a means of preventing a concrete and specific
offence (see Guzzardi, cited above, § 102; compare also
Eriksen, cited above, § 86). This can be seen both from
the use of the singular (“an offence”) and from the
object of Article 5, namely to ensure that no one should be
dispossessed of his liberty in an arbitrary fashion (see Guzzardi,
ibid.).”
b. Application of these principles to the
present case
- The
Court has to determine, in the light of the foregoing principles,
whether the applicant, during his preventive detention at issue,
which exceeded a period of ten years, was deprived of his liberty in
accordance with one of the sub-paragraphs (a) to (f) of Article 5 §
1. That detention was justified under sub-paragraph (a) of Article 5
§ 1 if it still occurred “after conviction”, in
other words if there was still a sufficient causal connection between
the applicant’s conviction and his continuing deprivation of
liberty occurring after 26 June 1999, when he had served ten years in
preventive detention.
- The
Court considers that the applicant’s “conviction”,
for the purposes of Article 5 § 1 (a), is only his criminal
conviction by the sentencing Stuttgart Regional Court in 1985, which
alone found him guilty of several offences (amongst others, rape),
and which ordered his preventive detention in addition to a prison
sentence. The subsequent decisions of the courts responsible for the
execution of sentences to retain the applicant in preventive
detention did not, on the contrary, satisfy the said requirement of
“conviction” as they no longer involved a finding of
guilt of a (new) offence (compare, mutatis mutandis, M. v.
Germany, cited above, §§ 95-96).
- At
the time of the applicant’s conviction in 1985, the order for
his preventive detention, read in conjunction with Article 67d §
1 of the Criminal Code in the version then in force (see paragraph 39
above), meant that the applicant, against whom preventive detention
was ordered for the first time, could be kept in preventive detention
for a maximum period of ten years. Thus, had it not been for the
amendment of Article 67d of the Criminal Code in 1998 (see paragraph
40 above), which was declared applicable also to preventive detention
orders which had been made – as had the order against the
applicant – prior to the entry into force of that amended
provision (section 1a § 3 of the Introductory Act to the
Criminal Code; see paragraph 40 above), the applicant would have been
released when ten years of preventive detention had expired,
irrespective of whether he was still considered dangerous to the
public.
- The
present application is therefore a follow-up case, in terms of the
temporal course of events, to the application of M. v. Germany
(cited above), and the Court sees no reason to depart from its
findings in that judgment. The Court thus considers, as it has done
in the case of
M. v. Germany, (cited above, §§
92-101), that there was not a sufficient causal connection between
the applicant’s conviction by the sentencing court and his
continued deprivation of liberty beyond the period of ten years in
preventive detention. His continuing detention was therefore not
justified under sub-paragraph (a) of Article 5 § 1.
- The
Court further notes that the applicant’s preventive detention
beyond the ten-year point was also not justified under any of the
other sub paragraphs of Article 5 § 1. In particular, the
applicant’s preventive detention ordered under Article 66 §
1 of the Criminal Code
(see paragraphs 6 and 35-36 above) was not
justified as detention “reasonably considered necessary to
prevent his committing an offence” under sub-paragraph (c) of
that provision (compare, mutatis mutandis,
M. v.
Germany, cited above, § 102). Likewise, the Court is not
satisfied that the domestic courts, which were called upon to
determine whether the applicant was liable to reoffend owing to his
criminal tendencies, based their decision to retain the applicant in
preventive detention, executed in prison, on the ground that he
suffered from a serious mental disorder and was thus “of
unsound mind” within the meaning of sub-paragraph (e) of
Article 5 § 1.
- The
Court observes that following its judgment in the M. v. Germany
case, the Karlsruhe Court of Appeal considered, as did the Government
in the present proceedings, that it was possible for the courts
responsible for the execution of sentences to interpret the
provisions of the Criminal Code in compliance with Article 5 and
Article 7 of the Convention, as interpreted by the Court, and
terminated the applicant’s preventive detention.
It
welcomes the fact that the domestic court thus ended the applicant’s
continued deprivation of liberty in breach of Article 5 § 1, one
of the core rights guaranteed by the Convention. This is in keeping
with the subsidiary nature of the supervisory mechanism of complaint
to the Court articulated in Articles 1, 35 § 1 and 13 of the
Convention and reiterated in the Interlaken Declaration of 19
February 2010 (ibid., PP 6 and part B., § 4 of the Action
Plan), which lays the primary responsibility for implementing and
enforcing the rights and freedoms of the Convention on the national
authorities.
The applicant’s release does not, however,
alter the fact that in relation to his preventive detention beyond
the ten-year point up to his release, he may claim to have been a
victim of a breach of Article 5.
- There
has accordingly been a violation of Article 5 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
- The
applicant further complained in both applications to the Court that
the retrospective extension of his preventive detention from a
maximum period of ten years to an unlimited period of time breached
his right not to have a heavier penalty imposed on him than the one
applicable at the time of his offence. He relied on Article 7 §
1 of the Convention, which reads as follows:
“1. No one shall be held guilty of any
criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at
the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal
offence was committed.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant argued that preventive detention had to be classified as a
penalty. By the abolition of the maximum duration of ten years of his
preventive detention, which was applicable at the time of his
offence, a heavier penalty had therefore been imposed on him
retrospectively, in breach of Article 7 § 1 of the Convention.
Moreover, the duration of preventive detention was insufficiently
defined.
- The
Government referred to their observations made in relation to Article
5 in the present application and to those made on Article 7 in the
case of M. v. Germany.
2. The Court’s assessment
a. Recapitulation of the relevant
principles
- The
Court reiterates the relevant principles laid down in its case-law on
Article 7 of the Convention, which have been summarised in its
judgment of 17 December 2009 in the case of M. v. Germany
(cited above), as follows:
“118. Article 7 embodies, inter
alia, the principle that only the law can define a crime and
prescribe a penalty (nullum crimen, nulla poena sine lege).
While it prohibits in particular the retrospective application of the
criminal law to an accused’s disadvantage (see Kokkinakis v.
Greece, 25 May 1993, § 52, Series A no. 260 A) or
extending the scope of existing offences to acts which previously
were not criminal offences, it also lays down the principle that the
criminal law must not be extensively construed to an accused’s
detriment, for instance by analogy (see Uttley v. the United
Kingdom (dec.), no. 36946/03, 29 November 2005, and Achour v.
France [GC], no. 67335/01, § 41, ECHR 2006 IV).
...
120. The concept of “penalty” in
Article 7 is autonomous in scope. To render the protection afforded
by Article 7 effective the Court must remain free to go behind
appearances and assess for itself whether a particular measure
amounts in substance to a “penalty” within the meaning of
this provision (see Welch v. the United Kingdom,
9
February 1995, § 27, Series A no. 307 A; Jamil v.
France, 8 June 1995, § 30,
Series A no. 317 B; and
Uttley, cited above). The wording of Article 7 paragraph 1,
second sentence, indicates that the starting-point in any assessment
of the existence of a penalty is whether the measure in question is
imposed following conviction for a “criminal offence”.
Other relevant factors are the characterisation of the measure under
domestic law, its nature and purpose, the procedures involved in its
making and implementation, and its severity (see Welch, cited
above, § 28; Jamil, cited above, § 31; Adamson
v. the United Kingdom (dec.), no. 42293/98, 26 January 1999; Van
der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006 XV;
and Kafkaris, cited above, § 142). The severity of the
measure is not, however, in itself decisive, since, for instance,
many non-penal measures of a preventive nature may have a substantial
impact on the person concerned (see Welch, cited above, §
32; compare also Van der Velden, cited above).”
b. Application of these principles to the
present case
- The
Court is thus called upon to determine, in the light of the foregoing
principles, whether the extension of the applicant’s preventive
detention from a maximum of ten years to an unlimited period of time,
as a result of which the applicant was kept in preventive detention
beyond the initial ten-year point, violated the prohibition of
retrospective penalties under Article 7 § 1, second sentence.
- The
Court observes that at the time the applicant committed his sexual
offences in 1984, a preventive detention order made by a sentencing
court for the first time, read in conjunction with Article 67d §
1 of the Criminal Code in the version then in force (see paragraph 39
above), meant that the applicant could be kept in preventive
detention for ten years at the most. Based on the subsequent
amendment in 1998 of Article 67d of the Criminal Code, read in
conjunction with section 1a § 3 of the Introductory Act to the
Criminal Code (see paragraph 40 above), which abolished that maximum
duration with immediate effect, the courts responsible for the
execution of sentences then ordered, in the two sets of proceedings
here at issue, the applicant’s continued preventive detention
beyond the ten-year point. Thus, the applicant’s preventive
detention – as that of the applicant in the case of M. v.
Germany – was prolonged with retrospective effect, under a
law enacted after the applicant had committed his offence.
- The
Court further refers to its conclusion in the case of
M. v.
Germany (cited above, §§ 124-133) that preventive
detention under the German Criminal Code, having notably regard to
the facts that it is ordered by the criminal courts following a
conviction for a criminal offence and that it entails a deprivation
of liberty which, following the change in the law in 1998, no longer
has any maximum duration, is to be qualified as a “penalty”
for the purposes of the second sentence of Article 7 § 1 of the
Convention. It again sees no reason to depart from that finding in
the present case.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 7 § 1 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants also complained that his prolonged preventive detention
constituted inhuman and degrading treatment or punishment in breach
of Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument.
A. The parties’ submissions
- In
the Government’s submission, the applicant failed to exhaust
domestic remedies in relation to his complaint under Article 3 in the
proceedings which are at issue in his application no. 27360/04. Other
than in the proceedings at issue in application no. 42225/07, he
failed to argue in his constitutional complaint of 29 April 2002 to
the Federal Constitutional Court that his continued preventive
detention for an indefinite duration constituted inhuman or degrading
punishment.
- The
Government further took the view that the applicant’s continued
preventive detention on the basis of a judgment delivered in 1985 had
not violated Article 3 of the Convention. The applicant’s
preventive detention for an indefinite duration did not amount to an
irreducible life sentence because the courts responsible for the
execution of sentences had to examine at least every two years
whether the applicant was still liable to commit serious offences and
had to release him if that was not the case.
The fact that the
applicant may have supposed at the time of his conviction that he
could not be placed in preventive detention for more than ten years
did not warrant protection because in accordance with Article 2 §
6 of the Criminal Code (see paragraph 34), the maximum duration of
preventive detention had always been susceptible to be changed. It
was only the Court’s new case-law developed in M. v. Germany
which led to the conclusion that the said provision could only be
applied to a limited extent in respect of preventive detention.
- The
Government submitted that the applicant had not been granted
relaxations in the execution of his detention regime, which were a
precondition for his release, because he had refused to make a
therapy. They considered that in fact, the applicant’s
complaint about a retrospective change in the consequences of his
offences fell to be examined under Article 7 and 5 § 1, but not
under Article 3.
- The
applicant contested that view. He argued that he had exhausted
domestic remedies in relation to both applications because the
Federal Constitutional Court, in its leading decision of 5 February
2004 to which that court’s decision in his case had referred,
had also had regard to the provisions of the Basic Law which
corresponded to Article 3 of the Convention.
- The
applicant further submitted that the prolongation of his preventive
detention to an indefinite duration amounted to a breach of Article
3. He complained that he had never been given a chance to prove,
during relaxations in the execution of his detention regime, that he
was no longer dangerous to the public. As he had not been granted any
privileges in preventive detention compared to the conditions of
detention for other prisoners serving their sentence, the execution
of his preventive detention had violated Article 3.
B. The Court’s assessment
- The
Court notes that in the proceedings at issue in
application no. 27360/04, the applicant failed to raise in
substance his complaint that his prolonged preventive detention
constituted inhuman and degrading treatment in the proceedings before
the Federal Constitutional Court prior to bringing it before this
Court. His complaint under Article 3 must therefore be dismissed for
non-exhaustion of domestic remedies in relation to that application,
pursuant to Article 35 §§ 1 and 4 of the Convention.
- As
regards the applicant’s complaint under Article 3 in relation
to application no. 42225/07, the Court reiterates that
ill-treatment, including punishment, must attain a minimum level of
severity if it is to fall within the scope of Article 3. The
assessment of this minimum is, in the nature of things, relative; it
depends on all the circumstances of the case, such as the nature and
context of the treatment or punishment, the manner and method of its
execution, its duration, its physical or mental effects and, in some
instances, the sex, age and state of health of the victim (see, inter
alia, Soering v. the United Kingdom, 7 July 1989, §
100, Series A no. 161; and Kudła v. Poland [GC], no.
30210/96, § 91, ECHR 2000 XI).
- The
Court has further found, in relation to the imposition of a penalty,
that matters of appropriate sentencing largely fall outside the scope
of the Convention, but has not excluded that an arbitrary or
disproportionately lengthy sentence might in some circumstances raise
issues under the Convention (see, inter alia, Sawoniuk v.
the United Kingdom (dec.), no. 63716/00, 29 May 2001, concerning
a life sentence imposed on a person of advanced age; and also Weeks,
cited above, § 47;
V. v. the United Kingdom [GC], no.
24888/94, §§ 97 et seq., ECHR 1999 IX and
T. v. the United Kingdom [GC], no. 24724/94, §§ 96
et seq.,
16 December 1999, all three judgments concerning
life sentences imposed on minors). Likewise, it cannot be excluded
that leaving a detainee in uncertainty over a long time as to his
future, notably as to the duration of his imprisonment, or removing
from a detainee any prospect of release might also give rise to an
issue under Article 3 (compare, in particular,
T. v. the
United Kingdom, cited above, § 99; V. v. the United
Kingdom, cited above, § 100; and Sawoniuk, cited
above). Furthermore, the fact that a sentence had no legal basis or
legitimacy for Convention purposes is another factor capable of
bringing a punishment received by the convicted person within the
proscription under Article 3 (compare Ilaşcu and Others v.
Moldova and Russia [GC], no. 48787/99, § 436, ECHR
2004 VII).
These principles, developed in relation to prison
sentences, must apply, mutatis mutandis, to a person’s
preventive detention after he fully served his prison sentence, which
is here at issue.
- The
Court notes in relation to application no. 42225/07 that the
applicant was kept in preventive detention beyond the ten-year point
since 26 June 1999. His preventive detention, following a term of
imprisonment of five years, thus lasted for more than seventeen years
and exceeded the former maximum duration already for more than seven
years at the time of the decisions taken by the domestic courts in
the proceedings at issue.
The Court observes, however, that
despite the applicant’s prolonged detention, the domestic
courts did not remove from him any prospect of release. They reviewed
at regular intervals whether the applicant’s continued
preventive detention was still necessary in view of its objective.
- The
Court further observes that, as found above, the applicant’s
preventive detention at issue, beyond ten years, was in breach of
both Article 5 § 1 and Article 7 § 1 of the Convention.
However, there is no indication that the domestic authorities were
acting in bad faith when prolonging the applicant’s preventive
detention as they relied on the fact that such prolongation was
constitutional and were not aware of the fact that it failed to
comply with the Convention. This can be seen to be confirmed by the
fact that the Karlsruhe Court of Appeal subsequently ordered the
applicant’s release on 10 September 2010 by reference to the
Court’s judgment in the case of M.
v. Germany. In these circumstances, the
Court finds that the applicant’s prolonged preventive detention
cannot be considered as ill-treatment or punishment which attained
the minimum level of severity so as to fall within the scope of
Article 3.
- It
follows that the applicant’s complaint under Article 3 in this
respect must be rejected as manifestly ill-founded, pursuant to
Article 35 §§ 3 (a) and 4 of the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
his application no. 42225/07 alone the applicant further complained
under Article 3 of the Convention about different measures taken by
the prison authorities during his preventive detention, including the
refusal to let him terminate his polytechnic education, the refusal
to pay him pocket money and the obligation to defray the costs of his
detention.
- Invoking
Article 6 of the Convention, he also claimed in application no.
42225/07 that the hearing in the proceedings for judicial review of
his preventive detention had not been fair as the courts had failed
to respect the two-year time-limit for judicial review of his
preventive detention, as he had to prove that he was no longer
dangerous and as his court-appointed counsel had been unable to
defend him effectively in view of the low remuneration she received.
- Moreover,
the applicant argued that preventive detention for a period exceeding
ten years, which had to be regarded as a penalty, violated his right
not to be punished twice, as guaranteed by Article 4 § 1 of
Prot. no. 7 to the Convention.
- The
Court has examined the remainder of the applicant’s complaints
as submitted by him. However, having regard to all the material in
its possession, the Court finds that these complaints do not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention or its Protocols. It follows that the remainder of the
applicant’s complaints must be rejected as manifestly
ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of
the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed, firstly, EUR 300,000 in compensation for damage
suffered as a result of his unlawful detention. He argued that he
would have earned that amount, comprising salary and pension claims,
had he been employed as a steel construction worker, the profession
he had exercised up to the day of his arrest. Moreover, he had to be
compensated for the fact that owing to his unlawful detention, he was
in a bad physical and mental condition and could therefore no longer
obtain a sufficient pension claim.
- The
applicant further claimed to be paid at least EUR 200 per day since
25 June 1999, the date since which he was in preventive detention for
a period exceeding ten years. He claimed that he had already
complained about his preventive detention in 1999, that is, before
the proceedings in 2001 which are the subject of application no.
27360/04.
- The
Government submitted that the applicant could not claim any damage
arising from his preventive detention prior to 11 December 2001
because the previous court decisions taken in 1999 were not at issue
in the present applications.
- The
Government further considered the applicant’s claim for
compensation for loss of salaries and pension insurance to be wholly
unsubstantiated. As to the applicant’s claim for compensation
for
non-pecuniary damage, they left it to the Court’s
discretion to fix an appropriate amount. However, they considered the
applicant’s claim to be paid EUR 200 per day in respect of
non-pecuniary damage to be excessive.
- With
regard to the applicant’s claim concerning pecuniary damage
having arisen from the loss of actual and future salaries and pension
claims, the Court reiterates that there must be a clear causal
connection between the pecuniary damage claimed by the applicant and
the violation of the Convention found, and that this may, where
appropriate, include compensation in respect of loss of earnings or
other sources of income
(see, among other authorities, Barberà,
Messegué and Jabardo v. Spain (Article 50), 13 June 1994,
§§ 16-20, Series A no. 285 C; and Çakıcı
v. Turkey [GC], no. 23657/94, § 127, ECHR 1999-IV). The
Court refers to its above findings that the applicant’s
preventive detention beyond the
ten-year point violated Article 5
§ 1 and Article 7 § 1 of the Convention. However, that
preventive detention did not interfere with an existing source of
income because the applicant had been detained as a result of his
conviction in 1985 already for fifteen years and was not working as a
steel construction worker prior to the ten-year point. Consequently,
no clear causal connection between the Convention violations and the
applicant’s loss of estimated earnings and pensions has been
established and the Court therefore rejects the applicant’s
claim in this respect.
- As
to the applicant’s claim for compensation of non-pecuniary
damage, the Court notes that in the Government’s submission,
the applicant could not claim any compensation for damage arising
from his preventive detention prior to 11 December 2001 because the
court decisions taken before that date were not the subject-matter of
the present applications.
It considers, however, that the
applicant based his Convention complaints both before the domestic
courts and before this Court on the fact that his preventive
detention had been extended retrospectively by a change in the
applicable law from a maximum period of ten years – which
expired on
26 June 1999 – to an unlimited period of time.
It is in view of that retrospective extension beyond the ten-year
period that the Court found violations of Article 5 § 1 and
Article 7 § 1 of the Convention. Moreover, the applicant
remained in detention on the basis of the decisions of the domestic
courts here at issue until his release on 10 September 2010.
In
these circumstances, the Court takes into consideration that the
applicant has been detained in breach of the Convention from 26 June
1999 until
10 September 2010, that is, for more than eleven years
and two months. This must have caused him non-pecuniary damage such
as distress and frustration, which cannot be compensated solely by
the findings of a Convention violation. Having regard to all the
circumstances of the case and making its assessment on an equitable
basis, it awards the applicant EUR 70,000 under this head, plus
any tax that may be chargeable.
B. Costs and expenses
- The
applicant, who was granted legal aid in the proceedings before this
Court, did not submit a claim for the reimbursement of costs and
expenses incurred in the proceedings before the domestic courts and
before the Court. The Court therefore does not make an award under
this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join the applications;
- Declares the complaint under Article 5 § 1
made in application no. 42225/07 and the complaint under Article
7 § 1 made in both applications admissible and the remainder of
the applications inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there has been a violation of Article
7 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 70,000
(seventy thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
